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Andrews v. State

Supreme Court of Nevada

March 1, 2018

RYAN ANDREWS, Appellant,
v.
THE STATE OF NEVADA, Respondent.

         Appeal from a judgment of conviction, pursuant Vo a jury verdict, of trafficking in a controlled substance and unlawful sale of a controlled substance at or near a public park. Second Judicial District Court, Washoe County; Janet J. Berry, Judge.

          Jeremy T. Bosler, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Appellant.

          Adam Paul Laxalt, Attorney General, Carson City; Terrence P. McCarthy, District Attorney, and Marilee Cate, Deputy District Attorney, Washoe County, for Respondent.

          BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

          OPINION

          PARRAGUIRRE, J.

         Unless otherwise authorized by statute, NRS 453.3385 prohibits a person from knowingly or intentionally selling or possessing schedule I controlled substances and imposes different penalties depending on the quantity of controlled substance involved. In this appeal, we are asked to determine whether the simultaneous possession of different schedule I controlled substances constitutes separate offenses under NRS 453.3385 or whether the weight of the controlled substances must be aggregated to form a single offense. We conclude that NRS 453.3385 creates a separate offense for each schedule I controlled substance simultaneously possessed by a person. We therefore affirm in part, reverse in part, and remand.

         I.

         Appellant Ryan Andrews sold heroin and methamphetamine to a confidential informant inside his apartment. Thereafter, the police obtained a search warrant for Andrews' apartment, where they discovered two bags of heroin totaling 9.445 grams and three bags of methamphetamine totaling 9.532 grams. Respondent State of Nevada charged Andrews with two counts of trafficking in a controlled substance and one count of unlawful sale of a controlled substance at or near a public park. In regard to the two trafficking counts, the State charged Andrews with possessing (1) 4 grams or more, but less than 14 grams, of a schedule I controlled substance in violation of NRS 453.3385(1); and (2) 14 grams or more, but less than 28 grams, of a schedule I controlled substance in violation of NRS 453.3385C2).[1]

         Andrews filed a motion to strike both of the trafficking counts, arguing that NRS 453.3385 did not allow the State to charge him with "an aggregate of completely separate controlled substances, " and that the State could not charge him for having a mixture of heroin and meth because the drugs were not mixed into one bag. The district court denied Andrews' motion, holding that the weight of different schedule I drugs simultaneously possessed by a defendant may be aggregated under NRS 453.3385.

         Although the district court denied Andrews' motion, the State offered to combine both of the trafficking charges into just one count, and Andrews' counsel agreed. Thereafter, the State filed an amended information, which removed the trafficking charge under NRS 453.3385(1), but retained the trafficking charge under NRS 453.3385(2) and the charge of unlawful sale of a controlled substance at or near a public park. Ultimately, a jury convicted Andrews of the two remaining counts, and the district court entered a judgment of conviction. Andrews now appeals the judgment of conviction.

         II.

         Andrews argues that different schedule I controlled substances may not be aggregated together, and therefore, because he had less than 14 grams of heroin and less than 14 grams of meth, he should have been charged with two counts of trafficking in a controlled substance in violation of NRS 453.3385(1). Specifically, Andrews argues that the unit of prosecution for NRS 453.3385 is the possession of each schedule I controlled substance. Conversely, the State argues that the weight of any schedule I controlled substances simultaneously possessed by a defendant must be aggregated under NRS 453.3385. Thus, the State argues that the unit of prosecution for NRS 453.3385 is each instance of simultaneously possessing schedule I controlled substances. We agree with Andrews.

         A.

         "[Determining the appropriate unit of prosecution presents an issue of statutory interpretation and substantive law" that this court reviews de novo. Castaneda v. State, 132 Nev., Adv. Op. 44, 373 P.3d 108, 110 (2016) (internal quotation marks omitted). When interpreting a statute, this court begins with the statute's text. Id.

         NRS 453.3385 (2013) reads, in relevant part, as follows:

[A] person who knowingly or intentionally sells, manufactures, delivers or brings into this State or who is knowingly or intentionally in actual or constructive possession of... any controlled substance which is listed in schedule I, except marijuana, or any mixture which contains any ...

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